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18-06-2019, Shankar Lal Saini, Section 54B, 54F, 271(1B), Tribunal Jaipur

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3 months 3 weeks ago #9782 by amit
Section - 54B, 54F, 271(1B), 271(1)(c)
Order Date - 18-06-2019
Favouring - Assessee
Court - Tribunal Jaipur
Appellant - Shankar Lal Saini
Respondent - DCIT
Justice - RAMESH. C. SHARMA, AM & VIJAY PAL RAO, JM
Citation - 619Taxpundit198
Appeal No. - ITA No. 1285/JP/2018
Asstt. Year - 2011-12

Order

PER : VIJAY PAL RAO, J.M.

These cross appeals are directed against the order dated 12.09.2018 of ld. CIT (A), Jaipur for the assessment year 2011-12. The assessee has raised the following grounds as under:-

“1. Under the facts and circumstances of the case, the order passed u/s 271(1)(c) is illegal and bad in law.

2. The Ld. CIT(A) has erred on facts and in law in confirming the levy of penalty U/s 271(1)(c) of the IT Act 1961 with reference to amount of Rs. 59,04,000/-.

3. The assessee craves to amend, alter and modify any of the grounds of appeals.

4. The appropriate cost be awarded to the assessee.

2. Ground no. 1 and 2 are regarding the validity of order passed U/s 271(1)(c) of the I.T. Act. The assessee is an individual and jointly with his brother sold ag icultural land at Village Ramsinghpura, Tehsil Sanganer on 28 12.2010 and 09.02.2011 for a total consideration of Rs. 5,66,78,800/- in which the assessee’s ½ share come to Rs. 2,78,39,400/-. The assessee filed his return of income on 21.02.2013 declaring long term capital gain at Rs. 64,61,650/- after claiming the deduction Under Section 54B and 54F of the Act. The AO has completed the assessment U/s 143(3) by making the additions inter alia on account of undisclosed sale consideration received in cash of Rs.59,04,000/-. The other additions made by the AO on account of disallowance of deduction Under sections 54B & 54F of the Act were deleted by this Tribunal in quantum appeal and the order of this Tribunal has been confirmed by the Hon’ble jurisdictional High Court .In the mean time, the AO initiated the proceeding U/s 271(1)(c) and levied the penalty of Rs. 55,83,424/- vide order dated 31.03.2017. The ld. CIT(A) restricted the penalty levied U/s 271(1)(c) of the Act only to the extent of the addition made on account of undisclosed sale consideration received in cash. The penalty levied in respect of the other additions on account of disallowance of deduction U/s 54B & 54F of the Act were deleted by the ld. CIT(A) as those additions were
deleted by this Tribunal and further confirmed by the Hon’ble jurisdictional High Court. Thus the issue in the present appeal is only regarding the levy of penalty in respect of undisclosed sale consideration.

3. Before us, the ld. AR of the assessee has submitted that the assessee has not suppressed any fact regarding the sale consideration in the assessment proceedings. The assessee in his statement recorded U/s 131 of the Act admitted the receipt of cash of Rs 59,04,000/- on sale of agricultural land. Since the assessee was not aware about the intricacies of Income Tax Act and computed the capital gain by taking the sale consideration as mentioned in the sale deed. This is bonafide mistake as the capital gain was computed by the tax consultant based on sale documents and therefore, cash consideration received by the assessee was not taken into account at the time of filing the return of income. The ld. AR has referred to the assessment order and submitted that the AO has recorded the satisfaction for initiating the proceedings U/s 271(1)(c) of the Act for furnishing of inaccurate particulars of income at page 3 and 4 of the assessment order whereas in para 3 of the penalty order the AO has observed that the non disclosure of sale consideration received in cash is concealment of income. Thus, the AO was not satisfied about the default on the part of the assessee whether it is furnishing of inaccurate particulars of income or concealment of particulars of income. In support of his contention, he has relied upon the Third Member decision in case of HPCL Energy Mittal Ltd. vs. ACIT
(2018) 169 DTR 1 and submitted that the Tribunal has held that if a clear cut charge in the penalty notice or the penalty order is that of ‘concealment of particulars of income’ but it turns out to be a case of ‘furnishing of inaccurate particulars of such income’ or vice versa then also the penalty order cannot legally stand. The ld. AR of the assessee has submitted that in the case in hand non disclosure of consideration received in cash of Rs. 59,04,000/- is a clear cut concealment of particulars of income as accepted by the AO at para 3 of the penalty order but still the AO has imposed the penalty for furnishing of inaccurate particulars of income and therefore, penalty order passed by the AO is legally not sustainable.

3.1 Alternatively, the ld. AR of the assessee has submitted that it is a case of bonafide mistake in filing the return in as much as the assessee has provided the copy of bank account and sale deed to the counsel. The cash amount was deposited in the bank account but the counsel while preparing the return has failed to consider the same and the assessee being not conversant with the technicalities of filing the return as prepared by the counsel and thus, there was bonafide mistake in not offering such amount for tax which was suo moto stated by the assessee when he was enquired about the deposit in the bank account. Thus, the ld. AR of the assessee has submitted that for such bonafide mistake the penalty should not be levied U/s 271(1)(c) of the Act.

4. On the other hand, the ld. DR has submitted that it is not a case of the assessee that he apprised the tax consultant all the correct facts about the sale consideration but only when the AO has examined the

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